- The appellate court faulted the High Court for setting aside the life imprisonment and proceeded to reinstate it.
- "We set aside the sentence of 30 years, and reinstate it instead with the sentence of life imposed by the trial court," the November 24, judgement reads.
Image: FILE
Charles Musau Mang'eli is in a position where he understands the Swahili phrase, "Mwiba wa kujidunga huambiwi mtu pole. (There is no pity for people who stab themselves on purpose)".
Leading up to his understanding is the events of six years ago, on the evening of October 4, 2017.
At around 3 pm, Mang'eli, who was a scrap metal dealer, left a microfinance meeting at Slaughter area in Athi River and proceeded to make the decision that would condemn him.
This is around the same time that CMM, a six-year-old left school for home.
But when she got home, the girl found the house locked so she decided to go to her aunt's to secure her bag.
As is the after-school ritual, CMM changed from her school uniform into tights and a sweater and went out to play.
It was at this time, while she was playing, when Musau saw her, called her to the shop he was manning and ordered her to get in.
Musau would then grab CMM, remove her clothes, lay her on a bench then proceed to defile her.
When he was done, he wiped himself with the girl's sweater before sending her outside to carry on with her playing.
It would be sometime later before CMM's sister came home and even much later before her mother arrived.
But when her mother came home, CMM made sure to tell her that she had developed pimples on her private parts.
However, after examining her daughter, she noticed nothing out of the ordinary.
It was not until October 7, that the mother noticed that her daughter's sweater was stained with what appeared to be blood and other stains she could not recognise.
Recalling CMM's complaint, she examined her private parts once again and this time, she found that they were swollen.
Since that horror evening, the girl had not told anyone of her ordeal and would only narrate it after her mother beat her.
After learning what had happened to her daughter, the woman took her to Nairobi Women's Hospital where a clinician examined her and found that even though CMM's outer genitalia was normal, her vagina had a foul-smelling clear discharge.
The girl's hymen was partially broken and her urine showed leucocytes and pus cells.
According to Healthline, leukocytes are white blood cells that fight infections and other invaders.
High levels of leukocytes in urine may indicate a urinary tract infection.
Luckily for CMM, the Hepatitis and HIV tests were negative.
Musau was arrested and arraigned. The court found that he had a case to answer and put him on defence.
He pleaded not guilty, claiming that on October 4, the microfinance meeting had begun at the usual time of 2 pm but ended at 5 pm.
He went on to state that he had reached his house at 7 pm and only became aware of the case when he was arrested.
The microfinance chair lady also said the meeting ended at 5 pm and tendered a copy of the minutes.
This was however dismissed by the investigating officer who told the court that the meetings did not go beyond 3 pm.
Upon considering the evidence, the trial court found that Musau was guilty of defilement, convicted and sentenced him to serve life imprisonment.
He was however aggrieved by the conviction and sentence and appealed at the High Court at Machakos.
In a judgement delivered on January 29, 2022, the court upheld the conviction but substituted the sentence of life imprisonment with a 30-year jail term.
Once again dissatisfied, Musau moved to the Court of Appeal arguing that the high court failed to analyse the evidence on record before the trial court in its entirety.
He also argued that the court failed to find that the prosecution did not prove its case beyond doubt and among others, that the sentence imposed was manifestly harsh and excessive.
Musau also claimed that CMM was not a credible witness as it was apparent that she was protecting her boyfriend.
He also complained of an amendment made to the charge sheet to correct a spelling error on the girl's name from an 'S' to a 'C', claiming that this resulted in two different persons.
The state however opposed the grounds, saying though CMM was young, she was clear to the person who defiled her.
On the amendment, it asserted that there was no prejudice to Musau as there was no doubt to whom the name was with reference.
It also dismissed the claim that the sentence was harsh and prayed that the first sentence be reinstated.
The case was before Judges Asike-Makhandia, Agnes Murgor and Sankale ole Kantai.
After reviewing the case, the appellate court noted that the amendment to the name in the charge sheet was a typographical error that did not alter any element of the charge.
The court also found that CMM had clearly recognised her assaulter as he used to repair cooking pans near her home and she knew him by name too.
"Given the totality of the evidence that was before the trial court, as well as the High court, we too are satisfied that the offence was proved to the required standard and squarely pointed to the appellant (Musau) as the perpetrator. As such, the appeal against conviction has no merit and is dismissed," the court added.
On the sentence, the judges were guided by Section 8(1) as read with Section 8 (2) of the Sexual Offences Act which offence in the case of a child under 11 years old carries a sentence of life imprisonment.
They faulted the High Court for setting aside the life imprisonment and proceeded to reinstate it.
"We set aside the sentence of 30 years, and reinstate it instead with the sentence of life imposed by the trial court," the judgement delivered on November 24, 2023, reads.